United States v. Hawkins

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-40984 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACK WILLIAMS HAWKINS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:97-CR-66 - - - - - - - - - - August 4, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Jack Williams Hawkins’ motion to file a reply brief out of

time is GRANTED. Hawkins has filed a pro se appeal of his

conviction and sentence for distribution of cocaine. Hawkins

has, through his guilty plea and plea agreement, waived his right

to challenge the search and seizure of contraband. See United

States v. Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991); United

States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). Hawkins

has, by withdrawing his earlier written objections to the

Presentencing Report (PSR), waived his right to argue that the

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-40984 -2-

district court erred in increasing his base offense level because

he possessed a dangerous weapon during the course of his drug

trafficking. He has likewise waived his right to argue that the

Government breached the plea agreement. See United States v.

Calverley, 37 F.3d 160, 162 (5th Cir. 1994)(en banc)(discussing

difference between waiver and forfeiture of rights).

Hawkins has not shown that the district court committed

error, plain or otherwise, in determining the drug quantity for

sentencing purposes; Hawkins provided no evidence before the

district court disputing the PSR’s factual findings regarding the

amount of drugs he distributed. See United States v. Fitzgerald,

89 F.3d 218, 223 (5th Cir. 1996). Hawkins has likewise not shown

error, plain or otherwise, in the district court’s failure to

dismiss the case based upon double jeopardy. See United States

v. Johnson, 91 F.3d 695, 697 (5th Cir. 1996); see also United

States v. Ursery, 518 U.S. 267, 291-92 (1996).

We decline to review Hawkins’ claim of ineffective

assistance of counsel, as the issue was not sufficiently

developed in the district court. See United States v. Rivas, 157

F.3d 364, 369 (5th Cir. 1998).

AFFIRMED; MOTION TO FILE REPLY BRIEF OUT OF TIME GRANTED.